Allan Massie is a Scottish writer who has published nearly 30 books, including a sequence of novels set in ancient Rome. His non-fiction works range from a study of Byron's travels to a celebration of Scottish rugby. He has been a political columnist for The Scotsman, The Sunday Times and The Daily Telegraph and writes a literary column for The Spectator.

The ECHR upholds British principles of freedom that we are in danger of forgetting

Most readers of The Daily Telegraph will, I trust, have nodded with approval when they read Peter Oborne’s splendid defence of the rule of law and the European Court of Human Rights. It is of course, as he said, a British creation, and was welcomed throughout western Europe by countries which had suffered from the brutality of the Nazi occupation. Indeed there are few things since 1945 of which we as a nation can be prouder than the Court’s founding document, largely drawn up by the future Conservative Home Secretary and Lord Chancellor, David Maxwell Fyfe, who had been one of the lawyers for the prosecution at the Nuremberg trial of the Nazi leaders.

Torture was never legal according to the Common Law of England, but it was practised by the Tudor and early Stuart monarchies. They used what were called the Prerogative Courts, notably the Court of Star Chamber, offshoots of the royal Council, to get round the Common Law’s prohibition of torture. It was the Prerogative Courts which employed instruments of torture such as the rack to extort confessions from suspects, or from anyone thought to have information about seditious conspiracies.

The Prerogative Courts were most powerful, and the use of torture most frequent – and most horrible – in the reign of the first Elizabeth: the “Glorious Days of Good Queen Bess”. Their most prominent victims were Roman Catholic priests, of whom the most famous was Edmund Campion, and Catholic laymen who sought to reverse the Protestant Reformation. They were accused of being traitors and agents of a foreign power, far too dangerous to the security of the realm for any trial to be entrusted to the Common Law. Reason of State required that the law be disregarded, and confessions extorted. The immediate consequence was to feed their disaffection. The more they were persecuted the more likely they were to turn to conspiracy. The Gunpowder Plot of 1605 was only the most dramatic example of this.

One can’t read of the proceedings of the Prerogative Courts and of the loathsome practices of the torture machine without seeing a modern parallel. In the name of national security Law was subordinated to what seemed expedient. Torture and detention without trial were justified because they seemed to work. Late Tudor England had the trappings of a police state, even if by modern standards an undeveloped one.

Note however the consequence. Englishmen came to see the Prerogative Courts, with their contempt for legal process, as an instrument of despotism. When Charles I found it necessary to call a Parliament in 1640 for the first time in eleven years, one of its first acts was to declare the Prerogative Courts illegal and to abolish them. In 1660 the monarchy as restored but the laws passed in 1640-41 were not repealed. The Prerogative Courts did not return. The Common Law reigned supreme. Torture was outlawed. It was again what the Common Law had always declared it to be: illegal.

It still is illegal, but to our shame British Governments have in recent years practised, or at least consented to, torture by proxy, outsourcing it by means of the practice of “extraordinary rendition”. Those who attack the “interference” of the European Court of Human Rights in our legal system in cases of alleged terrorism or of incitement to commit terrorist acts, or who favour imprisonment without trial for men who are thought dangerous but against whom there is insufficient evidence to bring a charge, show contempt for the principles of freedom established by the Parliament of 1640, and by the Habeas Corpus Act of 1678. Perhaps they would like to see the Court of Star Chamber re-established in order that suspects may be subjected to the rack?